LexSAMARENDRA NATH SINHA & ANR. versus KRISHNA KUMAR NAG
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SAMARENDRA NATH SINHA & ANR.
v.
KRISHNA KUMAR
~AG
November I, 1966
A
[K. N. WANCHOO, J. M. SHELAT A:-ID G. K. MITIH, JJ.]
B
Code of Civil Procedure (Act 5 of 1908), ss. 151, 152-Court ml<-
tak !'nly passing preli1ninary decree for sale in suit for forecio.vure-Sub-
$equent/y correcting 111istake and paS,\ing final decree for foreclo.n1re-
Power ro corrrct such error.
Transfer of Property Act ( 4 of l 882), s. 52- Purchase of 1nortgaged
propt'r( .. ' pcnd-.!nlc life-A f'f'licability of doctriur vj lis pcndcns.
A piece of land wilh some con~tructions on it
situated
in
district
Howrah ~·as mortgaged by conditional sale.
The mortgage deed
pro-
vided that in c;isc of default in payment of the mortgage amount by the
due date the .. ate vw'ould bccornc absolute.
Subsequently the
mortgagor
sold hi.; intcrc~t 10 l-1.
As the mortgage :..imount \vas nol paid by the due
date the mnr1g;1gec filed ;1 'iUil for foreclosure which \Ya'S decreed.
The
tri;:tl court p;J<;'.>ICd a preliminary decree or<lering that in Ci..l'.'!C 1he mortgage
<1n1ount \\1as not paid \V'ithin six. months the plaintiff would be at liberty to
apply for a final decree for sale.
H liled an appeal hcfore the High
C\)Uft v.hich \\.il<; dismissed.
The final decree framed bv the trial Court
in pursuance \)f the High ('ourt's orders \Vas for forec!Osurc.
While the
ahovc appeal \Vas pending the rcspontknt in execution of a money decree
again"! lf purchased the ;1foresaid mortgaged
properties and \Vas given
po-;scs<;ion thereof.
HO\\'cvcr 3flcr the final decree passc<l by the Court
Jn the 1nor[g;i~c \Uit Lhc mortgagee was given possei.;sion of the properties.
l'hc rei.;pon<lcn1 1hcrcupon tiled JP applicalion under 0. 21 r. 100 for res-
toration of po:-.sc~sion to him.
This application was rejected by .the trial
court.
The rec;pondent then filed an appeal against the fin3J decree in the
High Courr.
His :.ippcal \1/as entertained
and the High Court set aside
the trial court's decree on the ground 1hat there v.·as lack of conformity
bet\\'CCn the prclimin;1ry decree \Vhich \\·as for sale and the final decree
which wac; for foreclosure.
The matter \Vac; remanded to the trial court
nnd lcavl! \\'ilS given to the respondent to panicipate in the matter. The
appellants \vho in the meanwhile had purcha'lcd the mortg<'.l.gee's interest,
appealed., with certificate under Arl. 133(a) and (b) to this Court.
HELD : (i) The High Court had held that the respondent had a
locus .\'fandi in the maner and h:id llirccted lhat
he was
to he allowed
in the remand proceedings to plead that 1he final decree should be one
for sale thus reopening the question of redemp!ion of the mortgage v-·hich
had been extinguished by the final decree.
The High Court's order as
r~ards these matters was certainly a final order and therefore the pro-
pnety of the certificate under Ari. 133 granted tv the- appellants could
not be questioned. (24 A-CJ
(ii) There is an inherent power in the court which pasc;es the judg-
mont to correct a clerical mistake or an error arising from an accidental
slip or omission and to vary its judgment so as to give elTect to
its
meaning and inten~ion. On the facts of the present case there could be
little doubt that the court had no occa ..>n 10 pass a preliminary decree
for sale and that it was lhrough an accidental slip or inadvertence that in
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S. N. SINHA V. K. K. NAG (She/at, J.)
19
the penultimate part of its judgment the court used the
phraseology
proper in a mortgage decree for sale. Once this error had crept in the
judgment it was repeated in the preliminary decree. This
being
the
position the trial court had the power under s. 151 and s. 152 of the
Code of Civil procedure to correct its own error which had crept in the
judgment and the preliminary decree and to pass a proper final decree. for
foreclosure as intended by it. (24 E, 25 E, HJ
(iii) On the facts of the case it could not be gaid that the decree
represented a wrong decision of the Court. [26 D-E]
(iv) The principle of lls pendens applies even to involuntary aliena-
tions like court sales. The respondent having purchased the mortgaged
property while the appeal against the preliminary decree in respect of the
property was pending in the High Court, the doctrine of lis pendem
must apply to bis purchase and he was therefore bound by the result of
the suit. (28 B-DJ
Cate law considered.
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